Citation Nr: 1547123 Decision Date: 11/06/15 Archive Date: 11/13/15 DOCKET NO. 15-16 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to special monthly compensation (SMC ) based on the need for regular aid and attendance of another person or by reason of being housebound due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from December 1956 to September 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. This appeal was processed using the Veterans Benefits Management System (VBMS). Records in the Virtual VA paperless claims processing system also have been reviewed and considered. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to care for his daily needs without requiring the regular aid and attendance of another person; and he is neither bedridden nor housebound. CONCLUSION OF LAW The criteria for an award of SMC based on the need for regular aid and attendance or housebound status are not met. 38 U.S.C.A. §§ 1114(l), 1114(s), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.350(b), 3.350(i), 3.352(a)(2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in November 2013 of the criteria for establishing SMC, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in March 2014. Nothing more was required. VA also has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Treatment records, identified and relevant private treatment records, claims submissions, the Veteran's testimony and lay statements have been associated with the record. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran also was afforded VA examinations in February 2013 and December 2013. The Board finds the VA examinations and opinions to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to determine whether he is entitled to SMC based on the need for regular aid and attendance or by reason of being housebound. Although the Veteran during the August 2015 Board hearing stated that his condition has been getting worse, which his representative reiterated in an October 2015 brief, the facts laid out in the Veteran's testimony does not suggest a material change in his service-connected disabilities with regard to his claim for SMC based on the need for regular aid and attendance or due to being housebound. See 38 C.F.R. § 3.327. During the August 2015 Board hearing, the Veteran stated that he needed assistance in having his meals prepared, putting on his socks, scrubbing in the shower, being driven around, and having his children do his shopping. However, on VA examination in December 2013, the examiner noted the same factors by stating that the Veteran needed assistance with meal preparation, housework, putting on certain kinds of clothing, and could not bathe himself very well. Thus a new examination for regular aid and attendance and housebound status is not warranted. On VA examination in April 2001, the examiner noted that the Veteran was receiving disability benefits from the Social Security Administration (SSA). VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those records that relate to the disability for which the appellant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Here, the Veteran's February 2013 VA examination for housebound status or permanent need for regular aid and attendance, was received on July 16, 2013. The RO has construed the examination report as an inferred claim for SMC. The general rule with respect to the effective date for benefits based on an original claim, a claim after final allowance, or a claim for an increase an award of increased compensation is that the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the 1-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within 1 year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). As the SSA records predate the Veteran's claim for SMC by many years they do not have a reasonable possibility of substantiating the claim and attempt to obtain them is not warranted. During the August 2015 Board hearing, the undersigned discussed with the Veteran the issue on appeal, the evidence required to substantiate the claim, and asked questions to elicit information relevant to the claim. This action supplemented VA's compliance with the VCAA, 38 C.F.R. § 3.103, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). Aid and Attendance The analyses focus on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The pertinent evidence is addressed in detail below. Additional lay and medical evidence in the record is cumulative of the evidence being presented. SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining when a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. "Bedridden," defined as that condition, which, through its essential character, actually requires that a claimant remain in bed, is a proper basis for this determination. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The Veteran contends that the need for aid and attendance is based on the requirements of personal assistance from others in helping him manage his activities of daily living due to his service-connected disabilities. Consequently, the Veteran can only establish entitlement to SMC under 38 U.S.C.A. § 1114(l) by showing his service-connected disabilities cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352(a). It is important to note that only a veteran's service-connected disabilities may be considered in support of his claim for SMC. Any effects of a veteran's nonservice-connected disabilities will not be considered. The Veteran is currently service-connected for degenerative changes of the lumbar spine, degenerative changes of the cervical spine, left lower extremity radiculopathy, and right lower extremity radiculopathy. Considering the evidence of record in light of the pertinent legal authority, the Board finds that the criteria for the payment of SMC based on the need for regular aid and attendance of another person are not met. The weight of the evidence of record does not reflect that the Veteran's service-connected disabilities have rendered him bedridden or unable to dress or undress himself, to keep himself ordinarily clean and presentable, to feed himself, to attend to the wants of nature, or that his service-connected disabilities require the need of adjustment of any special prosthetic or orthopedic appliance or result in other incapacity, physical or mental that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. On VA examination for housebound status or permanent need for regular aid and attendance dated in February 2013, which was received on July 16, 2013, the examiner indicated that the Veteran was not able to feed himself as he was unable to prepare his meals, required some assistance with utensils, and was unable to perform fine motor functions. She indicated that the Veteran needed assistance in bathing and tending to other hygiene needs as he could not get in and out of the bath unassisted. He also needed assistance is managing his medication and financial affairs, particularly with writing checks. The examiner noted that the restriction of the upper extremities affecting the Veteran's grip, movement, ability to feed himself, button his clothing, shave and attend to the needs of nature were affected by the nonservice-connected osteoarthritis of the hands and wrists and rotator cuff tear. The examiner commented that the Veteran had poor balance and a loss of fine motor skills. He could ambulate but needed assistance getting up from a chair or bed. She noted that the Veteran could no longer drive and only was able to leave home when his daughter was able to take him out. As for the restrictions caused by the service-connected lower extremities, spine and neck, the examiner referred to the "notes attached". The only notes that appear attached with the February 2013 VA examination report are VA treatment notes that were stamped date received on July 16, 2013, the same date the February 2013 examination report was received. The Board has reviewed these treatment notes and a discussion of the pertinent findings is presented below. To the extent that the February 2013 examiner determined that the Veteran's service-connected cervical spine, lumbar spine, and lower extremities rendered him unable to feed and bathe himself and need assistance with medication and financial management as well as moving around, her opinion is outweighed by VA treatment notes to include records dated in November 2012 and December 2013, and the December 2013 VA examination. The credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The VA treatment notes that the examiner referenced that were received along with the examination report on July 16, 2013 include a November 2012 functional status assessment. This evaluation shows that the Veteran received no assistance bathing, dressing, toileting, and moving in and out of the bed and chair without assistance. He was able to control his bowel and bladder, feed himself except for cutting bread or buttering bread. He was able to use the telephone on his own, drive his own car and travel alone on a bus or taxi, take care of all his shopping needs, and take the correct medication doses. Although the Veteran was unable to cook full meals alone, he was able to prepare light foods, and was able to do light housework, while needing help with heavy tasks. As for money, the Veteran was able to manage his daily buying needs. A VA functional status assessment in December 2013 shows that the Veteran received assistance in bathing only one part of the body and could get dressed without assistance, with the exception of tying his shoes. He received assistance with going to the toilet, cleansing, moving in and out the bed and chair, and arranging his clothes. Although the Veteran had an occasional accident with continence it was determined that he did not have incontinence. He was able to feed himself except for cutting meat or buttering bread. He was able to use the phone, travel with assistance, prepare light foods (unable to cook full meals alone), and do light housework (needed help with heavier tasks). The Veteran was able to use the phone, and was able to take his medications but needed reminding or preparation to take them. He was able to manage his daily buying needs. On VA examination in December 2013, the examiner in conjunction with reviewing the claims file and examining the Veteran noted that in the morning he took his medications and could drink a Carnation Instant breakfast, or microwave some leftovers. His daughter lives nearby and helps him with housework and pouring milk into small bottles because he cannot carry a gallon of milk. The Veteran had difficulty peeling a potato secondary to pain and weakness in his hands, elbows, shoulders, and back. He had difficulty with certain kinds of clothing, and sometimes needed assistance such as putting on a sweatshirt and only bought slip on shoes. He had difficulty shampooing his head, stating he can bathe himself but not very well. He was on 24 hour oxygen because of his non-service-connected chronic obstructive pulmonary disease. He indicated that he could carry the oxygen tank if he walked very slowly. The examiner stated that the Veteran's imbalance occasionally affected his ability to ambulate and that no part of his body or system impairments affected his ability to protect himself from the daily environment. The examiner opined that the Veteran was able to perform all functions related to self-care skills and could walk without the assistance of others. He did not need an aid for ambulation and the circumstances under which he could leave home were unrestricted. The examiner indicated that both the service-connected cervical spine and the lumbar spine caused limitation of motion or deformity. The function of the nonservice-connected upper extremities was not normal, which caused some difficulty in bathing, dressing, self-feeding, grooming, and toileting. However, the examiner opined that the function of the service-connected lower extremities was normal and the Veteran was able to handle his finances, noting that he took care of his own finances through the mail and his daughter helped him by driving him to the bank and making payments on his computer. On the accompanying December 2013 VA neck examination, the Veteran had painful motion (forward flexion was 45 degrees with pain at 25 degrees). The examiner determined that there was no ankylosis. On the accompanying December 2013 VA back examination the Veteran had painful motion (forward flexion was 60 degrees with painful motion at zero). There was no ankylosis and the examiner determined that muscle strength testing was essentially normal with the exception of bilateral hip flexion which showed active movement against some resistance. Reflex exam was normal and sensory exam was normal. The examiner assessed the Veteran's radiculopathy to be at most mild. The Veteran did not have any bowel or bladder problems. Consideration has been given to the assertions of the Veteran and his family that his symptoms are of such severity as to warrant SMC for aid and attendance. In August 2015, the Veteran testified that he received assistance from his children and grandchildren in addition to receiving two hours of domestic help per week. He stated that he did not need assistance eating meals nor reheating them but needed help preparing them. He had Meals on Wheels deliver food five days per week and otherwise managed to eat the meals his daughter put in his bottles. The Veteran's daughter and sister also indicated that he needed assistance with preparing food, household maintenance, dressing, and bathing. See December 2013 statement from the Veteran's daughter, April 2014 statement from his sibling. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran and his relatives are competent to report his symptoms because this requires only personal knowledge as it comes to them through their senses. See Layno, 6 Vet. App. at 470. However, they are not competent to state how the Veteran's symptoms should be applied to the applicable standards set forth by VA regulations. SMC is based on his ability to live independently as determined by the clinical evidence of record. Therefore, the Board finds that the weight of the medical evidence, which directly address the criteria under which SMC is evaluated, is more probative than the assessments of the Veteran and his relatives. As the Veteran's lay statements are not competent to determine whether the SMC criteria have meet, the issue of whether the statements are credible is not reached. It is also noteworthy that during the Board hearing the undersigned observed that the Veteran was able to move quickly and effectively with his walker, which is an observation that the undersigned as a lay person also is competent to make. Id. The Board does not wish to minimize the effect of the Veteran's service-connected disabilities on his ability to function in and around the home. The evidence reveals that the Veteran required some assistance around the home, with bathing and grooming, and with transportation. Even so, the weight of probative evidence reflects that the Veteran's service-connected disabilities do not cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance. Consequently, the criteria for SMC based on the need for the regular aid and attendance of another person are not met. See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). Housebound Status Special monthly compensation at the housebound rate is payable when a veteran has a single service-connected disability rated 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i)(1). The requirement of 38 U.S.C.A. § 1114(s)(2) is met when a veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 C.F.R. § 3.350(i)(2). A rating decision in September 2001 awarded the Veteran TDIU effective March 16, 2001. While the Veteran is not in receipt of service connection for a disability rated as 100 percent disabling, TDIU can be considered a total disability rating for purposes of housebound benefits. See Bradley v. Peake, 22 Vet. App. 280 (2008). Although the Veteran has been in receipt of TDIU for the entire current appeal period, his TDIU award in the September 2001 rating decision was based on his service-connected lumbar spine disability. However, the Veteran does not have a second disability rating evaluated as 60 percent or more disabling that is separate and distinct from the service-connected degenerative changes of the lumbar spine that was the basis for the grant of TDIU. The Veteran is currently service-connected for degenerative changes of the lumbar spine rated 60 percent disabling, degenerative changes of the cervical spine rated 30 percent disabling, left lower extremity radiculopathy rated 10 percent disabling, and right lower extremity radiculopathy rated 10 percent disabling. The combined rating of his cervical spine and lower extremities is 40 percent. See 38 C.F.R. § 4.25. Therefore, inasmuch as he does not meet the first legal criterion for housebound status, his claim for SMC at a housebound rate must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (in a case where the law and not the evidence is dispositive, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law). Moreover, even though the Veteran may be unable to drive due to his service-connected disorders, the weight of the evidence shows that he is not is permanently housebound. The facts show that his family drives him around and he was able to attend his August 2015 Board hearing. On VA examination in December 2013 the examiner opined that the circumstances under which the Veteran could leave home were unrestricted. Furthermore, although the Veteran has difficulty moving around, he does not contend that he is permanently housebound. Consequently, the criteria for SMC based on housebound status, likewise, are not met. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(3)(i)(2). For these reasons, the Board finds that the evidence does not support the Veteran's claim for SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound due to service-connected disabilities. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (The Order follows on the next page.) ORDER Entitlement to special monthly compensation (SMC) on the basis of the need for the regular aid and attendance of another person or on account of being housebound is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs